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Western Political Thought

Notes by Austin, though the latter’s Lectures on Jurisprudence (1832) contained a more rigid statement on
sovereignty than the one provided by Bentham (Plamentaz 1966: 65). Benfham’s theory (unlike
that of Austin) was more sophisticated, for it took into account factors like federalism and written
constitutions. Austin’s theory, on the contrary, was legalistic.
Bentham, unlike Austin and Hobbes, did not think that the powers of the sovereign were to be
unlimited or illimitable. Instead, he dismissed talk of illegality of actions of government as absurd,
unless it was possible to limit these actions by conventions. He did not define law in terms of
statute, and accepted the division of sovereignty as in federal systems. He also envisaged the
possibility of constitutional law, for morality and religion bound the sovereign’s power.
Bentham’s greatest contribution was in the field of jurisprudence and government (Sabine 1973:
617). He was critical of Blackstone for regarding tradition as sacrosanct, conferred by time as the
basis of law. He opposed the delays in laws, the obscurity and incomprehensibility in its language,
its arbitrariness, the undue expenses that it entailed, and the cruel punishments that were
recommended as a remedy. Instead of law being a product of the judiciary, contributing to its
ambiguity, he wanted it to be carefully drawn and coherently spelt out by a legislature, giving
little scope for judicial interpretation and elaboration. The codification of the law had to be such
that it would be understood by an average individual. One basic reform that he suggested was
replacement of lawyers’ fees by salaries, for that would stop endless litigation. He tried to introduce
an informal, inexpensive and simple procedure in law courts. He recommended oral testimony
and cross-examination before a judge in a public court. He advocated that the proceedings of these
courts should be modelled in a way a father conducted his inquiries within a family when there
was a dispute or a feud to settle. He emphasized that everyone who was likely to know about a
case, and in particular the parties, should be heard. Punishment was to be in accordance with the
consequence of the crime, namely the number of people affected by it. If the social pain was less,
then the punishment should be less severe.
Like Montesquieu, Bentham argued that a legislator should take into cognizance factors like
people’s customs, prejudices, religion and traditions while codifying the law. In 1811, he wrote to
US President Madison, offering to draw up a comprehensive code for the United States, and in
1814 made a similar offer to Alexander I of Russia. From 1824 to 1832, he wrote Constitutional Code,
outlining a new system of English government. A substantive part of it became the basis of the
1832 Reform Bill. It was for this reason that in 1844 the Westminster Review rightly proclaimed that
“we live in an age of Benthamism”.
Bentham stipulated happiness, and not liberty, as the end of the state. The state was a contrivance
created for fulfilling the needs of the individual. In order to promote happiness, he recommended
the need to establish Poor Laws, construct hospitals for the indigent, create workhouses for the
unemployed, levy taxes for the purpose of redistribution, decrease direct taxes, recompense victims
of crime for damages when the perpetrator was an indigent, safeguard national security, establish
courts and internal police, disseminate useful information to industry, label poisonous substances,
guarantee marks for quality and quantity of goods, set a maximum price for corn, provide security
and subsistence by stockpiling grain or giving granary bouts to producers, encourage investments
in times of unemployment, grant patents to inventors, regulate banks, establish and enforce
government monopoly on the issue of paper currency, engage in public works to make the
unemployed work, establish boards, institutes, universities and savings banks, provide cheap
postage, appoint a public prosecutor, and support the selection of the young against the interference
and asceticism of the old.
Bentham was categorical that a government and a state had to be judged by their usefulness to the
individual. He also insisted on a need for a watchful and interested government, which would
readily and willingly act whenever and wherever necessary for the happiness of the individual.
Sovereignty rested with the people, and had to be exercised by what he called the “constitutive

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